Austin, TX — Today the U.S. House of Representatives passed historic medical liability language in a bill that replaces the often-criticized Medicare physician payment formula known as the sustainable growth rate.

The measure passed overwhelmingly with strong bi-partisan support.

Language in the sustainable growth rate replacement bill ensures that federal quality and payment provisions may not be used in court to sue or to advance or defend a medical malpractice lawsuit.

“It is my hope that the Senate swiftly votes and passes this bill,” he said.

“This is the first step toward real, meaningful, entitlement reform, said Texas Congressman Michael Burgess, chief author of the bill.

“I have worked my entire congressional career to address this problem and, after years of uneven progress, we have finally taken this opportunity to do what is right for seniors, providers and the American taxpayer.

“Furthermore, the bill includes important standard of care provisions that protect state liability law and ensures that federal health care standards cannot be used to establish legal action against health care providers.”

“The Affordable Care Act does not specifically mention a new basis for liability, nor does it preclude it,” said Robert Donohoe, president and CEO of the physician-governed Texas Medical Liability Trust. The law is silent, and its silence is subject to judicial interpretation, which lawmakers were trying to avoid.

“We know from years of experience that when the law does not address something head on, all kinds of interpretations are possible,” he said.

“This much is clear: Never before has Congress passed a bill reining in federal intrusion of existing state medical liability laws, said Dr. Howard Marcus, chairman of the Texas Alliance For Patient Access, an organization that advocated the bill’s passage.

“Today we have provided the Senate and White House with the best opportunity to write a new chapter in the history of the American health-care system which focuses on creating stability for those most in need,” said Texas Congressman Kevin Brady, the chairman of the House Ways & Means Health Subcommittee.

The American Congress of Obstetricians and Gynecologists (ACOG) has distributed a warning to its membership of attempts by an unauthorized entity to enter ob-gyn offices under the guise of conducting an audit. “Representatives” of an entity calling itself Texas Risk and Compliance Solutions are appearing unsolicited in ob-gyn offices claiming they are conducting an audit sponsored by the Texas Association of Obstetricians & Gynecologists (TAOG) for mandatory HIPAA compliance of House Bill 300. These attempts are fraudulent. Please be aware that TAOG never hired or endorsed this entity.

When entering the office, they state that a certified letter had been sent to the office alerting them that a representative was coming to do the audit. They hand office staff a letter stating that if the office does not cooperate, it will be reported.

The letter contains several typos and a phone number that is no longer in service. The letter also reflects an erroneous address that lists TAOG as being a part of the Dallas office of the American Board of Obstetricians and Gynecologists (ABOG).

If a person claiming to be from Texas Risk and Compliance Solutions contacts you or comes to your office, tell them to leave and contact the authorities. Again, TAOG never hired or endorsed this entity.

If you have any questions or concerns, or feel you have been a victim of this fraud, please contact TMLT at 1-800-580-8658 and ask for the Claims Department.

Physicians licensed by the Texas Medical Board (TMB or Board) are required by law to renew their medical license every two years either online or by regular mail.

During the registration renewal process, physicians are required to answer questions regarding any status changes since their last renewal. Certain answers or omissions of information can trigger an investigation by the Board, and physicians may find themselves explaining their answers before an Informal Settlement Conference.

Four of the six questions in the “Professional History” section of the renewal application are routinely misunderstood and are often the cause of a Board investigation. The first two questions were explored in a previous blog post. Questions 3 and 4 are presented below along with an examination of where misunderstandings may occur and a hypothetical example of how a physician may consider responding.

Question 3 — criminal conduct

“Since your last registration or submission of your license application, have you been arrested, fined, charged with or convicted of a crime, indicted, imprisoned, placed on probation, or received deferred adjudication? (Unless the offense involved alcohol or drugs, you may exclude: 1) traffic tickets; and 2) violations with fines of $250 or less).”

Where misunderstandings may occur: Physicians must report not only convictions and deferred adjudications, but also arrests. It doesn’t matter whether the local prosecutor has dropped the charges.

Physician Example: In January 2014, Physician C was arrested for DUI. The prosecutor did not pursue the case, and the charges were dismissed shortly thereafter. In February 2015, Physician C renewed her license, but did not report her arrest since the DUI was dismissed.

What should Physician C have done?

Reporting the arrest that occurred in January 2014, along with the dismissal in September 2014, would have been appropriate. She may also supply letters of support from supervisors, family, and friends, along with a personal letter explaining what happened. Physician C would also be wise to obtain an examination by a substance abuse counselor to show the Board that she does not have an alcohol problem.

Physicians who are worried about reporting an arrest, consider this: The Board does not initiate an ISC for every physician who is arrested. The Board simply wants physicians to be forthcoming; the Board may find the failure to report more serious than the initial criminal allegation. Moreover, if the Board sees that a prosecutor took no action, it makes it easier for the Board to do the same.

Question 4 — physical/mental/emotional condition

“Since your last registration or submission of your license application, do you have any condition or behavior, including, but not limited to, any physical, mental, or emotional condition, which has impaired, which could impair, or which is impairing or limiting, your ability to practice as a physician in a competent manner?”

Where misunderstandings may occur: “Condition” and “behavior” are broad terms and could mean anything from having had a stroke, going to counseling, or being prescribed psychotropic drugs.

If there is any question about a condition, someone independent must objectively decide whether the condition affects that physician’s competence to practice medicine. How physicians do that is by obtaining letters from their treating medical provider that state the condition does not render the physician incompetent or unsafe to practice.

Physician Example: In October 2014, Physician D fell asleep during his practice group’s “staff appreciation day” lunch. Physician D suffers from intense insomnia and takes medication to help him sleep and stay awake. As a result of falling asleep at the lunch, he had his medication adjusted. Since taking action, he has had no issues. Physician D renewed his license in December 2014. Physician D answered “no” to the question about any conditions that affected his competence to practice.

What should the physician have done?

It would have been advisable for Physician D to notify the Board that his medication was adjusted. He may also have provided letters of support from physicians in his practice. Most importantly, the best tactic for Physician D would be to submit a letter from his treating physician, explaining that the condition is managed and that Physician D is competent to practice medicine.

Conclusion

The best approach to these Board questions is to disclose with explanation. The Board may be more concerned about a failure to report than the subject of the omission. Failing to report creates an impression that you have something to hide.

When in doubt, consult a medical license defense attorney who is experienced in handling Medical Board investigations and complaints.

Franklin Hopkins is an Austin-based attorney, Board Certified in Administrative Law, with Riggs & Ray, P.C. His practice focuses on representing physicians before the Texas Medical Board, along with other healthcare licensees in front of their respective licensing agency. He can be reached at 512-750-8020 or at fhopkins@r-alaw.com .

All examples are hypothetical scenarios and not based upon actual physicians or cases. This article is purely informational and not intended to be legal advice and should not be construed as such.

Every two years, physicians licensed by the Texas Medical Board (TMB or Board) are required by law to renew their medical license by visiting the TMB website and completing the registration form.(1) During registration, physicians must answer questions regarding any status changes since their last renewal. However, certain answers or omissions can trigger an investigation by the Board, and physicians may find themselves explaining their answers before an Informal Settlement Conference (ISC).

Four of the six questions in the “Professional History” section of the renewal application are routinely misunderstood and are often the cause of a Board investigation. To illustrate the dos and don’ts of renewing your Texas Medical License, two of the four questions (Questions 1, 2, 3, and 4) are presented below along with an examination of where misunderstandings may occur and a hypothetical example of how a physician may consider responding.

Question 1 — CME reporting

“Have you met current CME requirements of 1 hour Ethics, 11 hours Other Formal and 12 hours Informal for each year you are registering? If you are a newly licensed physician, you do not have to comply with CME requirements the first time you register and may answer ‘yes’ to the CME question.”

Where misunderstandings may occur: This question asks about completed continuing medical education credits, not CME still awaiting approval or CME you have registered to take. At the moment you hit submit on your license renewal application, could you also submit your CME certificates to prove completion? If so, then your reporting is correct.

Physician example: On August 20, Physician A renewed her license. She was four hours shy of her CME requirements. Physician A answered “Yes” to Question 1 because she was registered for a 16-hour CME conference taking place in September.

What could Physician A have done? Physician A’s best course of action would have been to postpone her renewal until she had completed four more hours of CME. Physicians are allowed a 30-day grace period to renew their license from the date of expiration.(2)

Question 2 — investigations and disciplinary actions

“Since your last registration or submission of your license application, not including investigations and disciplinary actions by the Texas Medical Board, are there pending investigations, pending disciplinary matters, or final disciplinary actions against you by any licensing agency or health-care entity?”

Where misunderstandings may occur: To answer this question, the physician must fully understand the definitions of “licensing agency” and “health-care entity.” The meaning of “licensing agency” is pretty clear. If the physician is licensed in another state and that state’s board is investigating the physician, or has pending (or final) disciplinary action against that physician, that physician must report it.

But the scope of what constitutes “health-care-entity” is less clear. Section 151.002 (5) of the Medical Practice Act defines a health-care entity to include a hospital, clinic, practice group, health maintenance organization, medical school, professional medical association, and the like. Such entities’ investigation and disciplinary process is ordinarily known as a “peer review.” Peer review may take many names, such as a credentialing committee, performance review committee, performance improvement committee, etc. No matter what title the hospital gives to its peer review type committee, investigations and actions taken by it are subject to the Board’s reporting requirements.

The Medical Practice Act also defines “disciplinary action” broadly. Reportable actions may include seemingly routine actions by credentialing committees. For example, if a physician voluntarily relinquishes his or her privileges or decides not to renew privileges while an investigation is pending, that constitutes a reportable disciplinary action.(3)

Keep in mind, the Board does not automatically accept a hospital’s peer review action. The Board is required by law to independently verify any allegation found by a health care entity.

Physician Example: In March 2014, Physician B, an orthopedic surgeon, performed spinal stimulation surgery on a patient. Unfortunately, the patient had complications that prompted the hospital to initiate a peer review proceeding. On June 1, with a peer review pending, Physician B renewed his license and failed to disclose the pending peer review.

What should Physician B have done? It would have been a better decision for Physician B to report the pending peer review. Within the renewal, Physician B would have the opportunity to explain the circumstances of the review. In addition, Physician B may supply letters of support from hospital supervisors and peers and inform the Board if the review allegation is determined to be “unfounded.” Finally, Physician B could submit an independent expert report verifying that there were no violations of the standard of care.

Notes:

(1) Physicians may also call the TMB Licensing Department to request a renewal by regular mail.

(2) Medical Practice Act, Section 156.004, Notice of Expiration.

(3)TEXAS MEDICAL BOARD RULES Chapter 190, Disciplinary Guidelines §190.8. Violation Guidelines: (4) Disciplinary actions by peer groups. A voluntary relinquishment of privileges or a failure to renew privileges with a hospital, medical staff, or medical association or society while investigation or a disciplinary action is pending or is on appeal constitutes disciplinary action that is appropriate and reasonably supported by evidence submitted to the board, within the meaning of §164.051(a)(7) the Act.

Franklin Hopkins is an Austin-based attorney, Board Certified in Administrative Law, with Riggs & Ray, P.C. His practice focuses on representing physicians before the Texas Medical Board, along with other health care licensees in front of their respective licensing agency. He can be reached at 512-750-8020 or at fhopkins@r-alaw.com .

All examples are hypothetical scenarios and not based upon actual physicians or cases. This article is purely informational and not intended to be legal advice and should not be construed as such.